193 S.W.2d 279 | Tex. App. | 1946
Appellee, Harold Cass, filed this suit against the appellant for divorce and for custody of their minor daughter, charging the appellant with harsh, cruel, and tyrannical treatment of such nature as to render their further living together insupportable. He alleged that he and the appellant were married September 23, 1939; that their infant daughter, Sonja Sue, was born to them September 7, 1940; that they separated in November 1944; and that on account of the alleged conduct of appellant she was not a fit person to have the care, custody, and control of their child.
Appellant answered the petition by the general issue and charges of cruelty on the part of the appellee. She alleged that the appellee was not a suitable person to have the care, custody, and control of their minor daughter and prayed that a divorce be *280 granted to her and that she be awarded the care, custody, and control of the child.
The case was submitted to the court without the intervention of a jury and resulted in a divorce being granted to the appellee, and the care, custody, and control of Sonja Sue was decreed to Wesley Stevens and his wife, the parents of the appellant, for six months of each year and to E. E. Cass and his wife, parents of the appellee, for the remaining six months of each year. The decree also required the appellee to pay into the registry of the court the sum of $25 each month for the support of the child. Appellant duly excepted to the judgment, gave notice of appeal, and presents the case in this Court upon two assignments of error, which we shall discuss in the inverse order of their presentation in the brief. She contends, first, that the decree entered by the court in which a divorce was granted to the appellee is not supported by full and satisfactory evidence as required by Article 4632, Revised Civil Statutes, 1925; secondly, that the trial court abused its discretion in taking the care, custody, and control of their infant daughter from her and placing it in the grandparents, because the evidence was not of the nature required by law to overcome the legal presumption that the welfare and best interests of the child would be subserved by awarding its custody to her.
The record shows that appellant is a young woman twenty-four years of age; that after some of their friends and associates had joined the Navy she corresponded with some of them, particularly one young man to whom she wrote letters and from whom she received letters in which expressions of love and affection were made. Some of these letters fell into the hands of the appellee and trouble and controversy between them ensued. Appellant obtained employment with the telephone company at Post in January 1944 and from that time the relations between her and the appellee became strained and they finally separated in November 1944. After their separation appellant took the baby to a rooming house, where she lived for several months. During the time she resided there several young men were seen to enter her room and, according to the testimony of one or two of the witnesses, on at least two occasions remained until late in the night. Although appellant explained all of those incidents in such manner as to neutralize their apparent damaging effect, they are sufficient, in our opinion, to support the judgment granting a divorce to appellee, and appellant's contention that the court erred in granting the divorce will therefore be overruled.
Appellant's second contention relates to that portion of the decree which deprived her of the custody of her infant daughter and placed it in the grandparents. In our opinion, this assignment must be sustained. Since the opinion by our Supreme Court in the case of State ex rel. Wood v. Deaton,
Although we are of the opinion that the judgment of divorce had support in the testimony, especially in view of the interpretation which seems to have been placed upon it by the court below, we are convinced that there is no evidence that appellant is not fully qualified to have the care, custody, and control of her infant daughter and that the best interests of the child will be subserved by decreeing its custody to her. Cardenas v. Barrera, Tex. Civ. App.
The judgment of the court below will be affirmed in so far as it granted a divorce and required the appellee to pay into the registry of the court the sum of $25 per month as a contribution to the support of the child; but as to the custody of the child, the judgment will be reversed and judgment here rendered decreeing its custody to the appellant with suitable privileges of visitation by the appellee. The costs accrued in the court below and in this Court will be taxed against the appellee. *282